INTELLECTUAL PROPERTY - appeal from decision of a delegate of the Registrar of Trade Marks accepting for registration a word mark in relation to services in class 35 - where appellant is the registered owner of identical or deceptively similar mark having an earlier priority date in relation to goods - whether the relevant goods and services are "closely related" for the purposes of s 44 of the Trade Marks Act 1995 (Cth) - whether the registration should be subject to a condition or qualification - whether the appellant is the owner of the mark subject to the registration - consideration of the parties' use of the subject mark in relation to goods as opposed to services before the priority date - consideration of commercial activities inherent to the sale of goods, not being activities constituting the provision of a service as a course of trade - consideration of use of trade marks in the context of a direct marketing scheme - appellant's ownership of the subject mark established in respect of goods and identified services - whether other services are the "same kind of thing" as the identified services - consideration of the reputation of the subject mark in Australia for the purposes of s 60 of the Trade Marks Act 1995 (Cth)- consideration of the class of consumer to whom the appellant's goods and services are directed - reputation in Australia not established - whether the registration of the subject mark would be contrary to law - whether the application for registration of the subject mark was made in bad faith - respondent copying the specification of services from an earlier registration secured by the appellant - respondent engaging in conduct before and after priority date directed to the illegitimate disruption of the appellant's business - consideration of the consequence of the respondent's failure to call witnesses to give evidence going to critical questions within their knowledge - bad faith established - appeal allowed
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